Abstract: This chapter explores the impact of context in shaping the role of cross-national jurisprudence in national courts and politics. A key element for understanding how context might shape the reception of ‘foreign’ jurisprudence in any jurisdiction is the idea of constitutional identity which articulates the relationship between culture, political economy and law. Through this lens the chapter explores how cross-national jurisprudence is applied in different jurisdictions, at times as a model in support of local developments and at other times as an anti-model explaining why particular claims or arguments are unsuited to the local context. This exploration aspires to build a theory of how cross-national jurisprudence has been shaped by specific judicial and national contexts as well as how different theories that explain how constitutional ideas travel might relate to the use of these rules and ideas in national courts. If the transnational movement of constitutional ideas is recognized, a theory of cross-national jurisprudence provides an additional means of understanding the role of foreign case law in domestic courts. This theory posits that it is through the domestic courts understanding of their own constitutional identity that they translate, apply and hybridize cross-national jurisprudence. A theory of cross-national jurisprudence aspires to add another dimension to our understanding of how constitutional ideas travel.
With the end of the Cold War constitution making became the dominant process in both conflict resolution and political change in nations across the globe. This raises an important question. Is constitution-making predominantly a process of design in which the choices made will determine the future of a particular polity or does a constitution-making process merely reflect the consolidation of a process of social transformation that is already underway? To explore this relationship, between social transformation and constitution-making this chapter adopts two strategies. First, it will consider the underlying assumption that constitution-making is an act of rational design. While understanding that the drafting of a constitution serves to design a system of power and governance, the chapter argues that the social context in which these processes proceed overshadow any single conception of rational design. Instead, it suggests there is a continuing relationship between the drafting of a formal constitutional document and the underlying material constitution, reflecting processes of social transformation through path dependency, negotiation, participation and the shaping of constitutional imaginations. Second, the chapter relies upon a close examination of constitution-making in South Africa’s democratic transition to demonstrate these various processes.